Alabama Employment Law Report : Alabama Employment Lawyer & Attorney : Daniel J. Burnick : Sirote & Permutt Law Firm

Earlier this week, the EEOC issued a press release emphasizing that: 

1.  Private sector bias charges hit an all-time high in FY 2011.  A total of 99,947 charges of employment discrimination were filed in 2011.  Retaliation allegations totaled 37,334, Race discrimination charges tototaled 35,395, Disability discrimination charges totaled 25,742 and Age discrimination totaled 23,465.  In the first full year of the Genetic Information Nondiscrimination Act (GINA), 245 charges were filed. 

2.  A record amount of money was recovered in FY 2011.  The EEOC recovered $455,600,000 in monetary relief through the administrative program and litigation.  This is $51,000,000 more than FY 2010.  The EEOC filed more than 300 lawsuits , and litigation efforts resulted in $91,000,000 of relief.  ADA claims produced the largest increase in monetary relief of all the statutes, with $103,400,000.  This was a 35.9% increase from FYI 2010.

3.  The pending inventory of charges was reduced for the first time in 10 years.  In FYI 2011, the EEOC resolved 112,499 charges, leaving an inventory of 78,136 of pending charges. 

Practice pointer.  Employers must continue to educate their workforce as to the employment laws that apply, and the consequences of violating them.  There seems to be more publicity about EEOC activities, and I anticipate this year will continue to show a steady, if not greater, number of charges being filed with the EEOC.  Employers must take any charge seriously, and respond in an appropriate manner, which may include involving legal counsel.  For those who remember Hill Street Blues, as Sgt Esterhaus would say in every show, "Hey, let's be careful out there". 

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Cheryl Perich was a teacher at the Hosanna-Tabor Church school in Michigan.  She taught mostly secular subjects, but also taught one 45 minute religious class and attended chapel with her class.  She was "called" a teacher by the school, completed religious training and was a "commissioned minister" at the school.  She was diagnosed with narcolepsy, and threatened to file a lawsuit against the Church under the Americans With Disabilities Act.  She claimed that she was terminated in retaliation for threatening to file the lawsuit, while the school said she was terminated for insubordination and failure to follow internal dispute resolution procedures.  In a unanimous decision, the Supreme Court found a "ministerial exception" to employment discrimination laws, holding that the courts stay out of the way of the hiring and firing of clergy.  Chief Justice John Roberts wrote that "When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us...The church must be free to choose who will guide it on its way."  Justice Roberts further wrote that:  "The interest of society in the enforcement of employment discrimination statutes is undoubtedly important...But so, too, is the interest of religious groups in choosing who will preach their beliefs, teach their faith and carry out their mission."  The Court found that the ministerial exception is not a jurisdictional bar to a lawsuit, but an affirmative defense.  The Court also made it clear that there was not a rigid formula for deciding which religious employees would qualify for the ministerial exception.  Future cases will be need to be decided by the courts based on the specific facts of each situation. 

Practice pointer.  This lawsuit was brought on behalf of Ms. Perich by the EEOC.  The Obama administration argued in support of Ms. Perich.  In rejecting the EEOC's arguments, Justice Roberts also wrote that reinstating Ms. Perich "would have plainly violated the church's freedom", and "would operate as a penalty on the church for terminating an unwanted minister:"  Justice Thomas wrote a concurring opinion, as did Justice Alito, who was joined by Justice Kagan.  A copy of the entire 39 page opinion can be found at the NYTimes. 

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A federal court jury comprised of 8 women and 4 men recently awarded $401,090.60 to a former Lawrence County payroll clerk after a week long trial.  Beronica Warren began working for the county in January, 2007,   Peggy Dawson became the county administrator after Warren was hired, and they had a strained relationship.  Warren filed an EEOC charge alleging that she was harassed and discriminated against by Dawson in March, 2008.  The 4 acts of retaliation presented to the jury were:  1.  The vote by the Commission to investigate the claim filed by Warren and then disciplining her; 2.  The investigation itself; 3.  The hearing the 2 county commissioners appointed to give her based on her charge; and 4.  Her termination.  Testimony included a statement by a former county commissioner who told Warren that "we are going to fire your ass for filing that charge" and taunted her as she was leaving the parking lot after packing her possessions, that the 2 commissioners appointed to investigate the EEOC charge never spoke to Warren, Warren had no documentation in her personnel file indicating that her job performance was poor (one of the reasons given for termination was poor job performance),  that Warren brought a tape recorder to the office to record Dawson, but Dawson found out about it and would come to her office and stare at her, and that newspaper articles about her termination caused her financial hardship and emotional distress.  A fifth count alleged she was not paid overtime.  After asking for $403,000 in closing arguments, the jury awarded her $450.64 in unpaid overtime,  $70,640 in back pay, $73,000 for the retaliation claim concerning the vote to investigate, $90,000 for retaliation concerning the investigation, $83,500 for retaliation for the hearing, and $83,500 for the termination.  Still pending before the court are claims for reinstatement or front pay and attorneys fees which may be as much as $400,000. 

According to the attorney for Warren, the county introduced no exhibits and the 4 commissioners/former commissioners who testified gave 4 separate reasons for the termination. In his opinion, the county could not articulate a legitimate business reason for the adverse employment action taken against Warren. 

Practice pointers.  Whenever an employer makes the decision to take an adverse employment action, including termination,  against an employee who files an EEOC charge, it must be done with caution.  The investigation must be done properly.  Personnel files must be reviewed.  The individual (s) making the decision must be careful about what is said.  During the discovery stage and at trial, if there is more then one decision maker, their testimony should be consistent.  Documentation is also very important.

HUD to pay over $60 Million to settle discrimination claim.  The Department of Housing and Urban Development (HUD) recently settled a case filed against it in New Orleans alleging that HUD discriminated against African-American homeowners after Katrina as part of the Road Home program.  The suit alleged that the formula used by HUD discriminated against African-Americans.  Road Home program data show that African-Americans were more likely than whites to have their Road Home grants based upon the much lower pre-storm market value of their homes, rather than the estimated cost to repair damage.  The estimated value of the settlement is in excess of $60 million.

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On Monday, January 24, The US Supreme Court issued an 8-0 opinion in the case of Thompson v. North American Stainless LP,  (NAS) finding that the terminated  fiancee of a co-worker could bring a retaliation suit against their employer after she filed a discrimination charge under Title VII.  Ms. Regalado, Mr. Thompson's fiancee, (they are now married) filed a charge of sex discrimination against NAS, and NAS was notified of the charge by the EEOC in February, 2003.  Thompson was fired 3 weeks later, and he filed a charge alleging that NAS retaliated against Regalado for filing her charge with the EEOC by terminating him.  With Justice Kagan not participating, the Supreme Court found that his termination was retaliatory.  Relying on the 2006 Burlington Northern case, the Court held that employers are prohibited from taking any action that "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination."  The Court concluded that it is "obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancee would be fired."  The Court was not clear in providing guidance to employers as to what relationships may give rise to this protected status:   the Court found that the termination of a close family member would "almost always" give rise to a claim."  Justice Scalia, writing the opinion, found  that "Title VII's anti-retaliation provision is simply not reducible to a comprehensive set of clear rules".The opinion also states: "Perhaps retaliating against an employee by firing his fiancee would dissuade the employee from engaging in a protected activity, but what about firing an employee's girlfriend, close friend, or trusted co-worker?" 

Practice pointer.  The Court's opinion is clear that an employee who is fired after his/her fiancee files a charge of sex discrimination is protected from retaliation under Title VII.  The opinion is also clear that a "close family member" MAY  be protected: but the Court did define what a "close family member" is, or how they may be protected.  Likewise, a "mere acquaintance" MAY not be protected:  again, the Court did not define what a "mere acquaintance" is, or how they may not be protected.  With a very large gray area between fiancee and mere acquaintance, employers have another area of potential exposure every time they terminate, or in my opinion, take an adverse employment action against an employee.  Do they have a fiancee working there?  A trusted family member?  A mere acquaintance who may or may not be protected from termination?  It will take years and many court cases to set the boundaries as to who is protected and who is not. 

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Last week, a federal jury in Birmingham returned a $314,000 verdict in favor of Albert Thomas and against Chemical Lime Co. located in Calera.  Mr. Thomas worked for Chemical Lime for 25 years, and was fired after he filed a charge with the EEOC.  The lawsuit contained 8 claims, including racially charged allegations that a supervisor left what appeared to be Klu Klux Klan garb in plain sight for Thomas and that one of his supervisors held up one of the hoods while making inappropriate comments and gestures, including "you won't be working here much longer, you will be with your brothers on the street" and threatening to "fire his black" backside.  This case is of particular interest since the jury found that Chemical Lime was not guilty of the underlying allegations, but only of retaliation for firing Thomas after he filed his charge with the EEOC. 

Practice pointer.  This case demonstrates that  not only can the allegations themselves lead to an adverse judgment, but that the claim of retaliation can result in a large verdict, even without a finding that the alleged underlying wrongful conduct took place. 

UNION MEMBERSHIP DOWN IN 2010. 

According to USA Today, the Bureau of Labor Statistics reported last Friday that union membership in 2010 declined by 612,000 from 2009.  In 2009, unionized workers represented 12.3% of the workforce, and in 2010, this dropped to 11.9%.  Private sector union membership fell from 7.2% to 6.9% of the workforce, while Public sector union membership dropped 1.2%.  The article points out that Black workers are more likely to be union members than White, Asian or Hispanic workers, that union membership was highest among those 55-65 and lowest among those 16-24, and that New York had the highest union membership rate at 24.2%, while North Carolina, at 3.2%, was the lowest. 

Practice pointer.  Unions will continue to push into non-union business sectors in Alabama and around the country in an effort to grow their numbers.  Employers must be aware of any organizing activity in their workplace, and be very careful how they respond.  Their are very specific rules and regulations on what can and cannot be done in this situation. 

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                 On November 3, 2010, Legal Times reported that the National Labor Relations Board's (NLRB) Hartford office filed a Complaint against American Medical Response of Connecticut, Inc. alleging that the ambulance service illegally terminated Dawnmarie Souza, for posting negative comments about her supervisor on her personal Facebook page. The NLRB contends that American Medical Response wrongfully denied Ms. Souza her union representation during the investigatory review, and that the NLRB was charging that the company “maintained and enforced an overly broad blogging and internet posting policy.” The NLRB, in their press release, stated that her supervisors “threatened her with discipline because of her request for union representation….Later that day from her home computer, the employee posted a negative remark about the supervisor on her personal Facebook page, which drew supportive responses from her co-workers, which led to further negative comments about the supervisor from the employee.” Ms. Souza was fired three (3) weeks later.

Today, Molly DiBianca, in her blog, The Delaware  Employment Law Blog, reported that an employee and her supervisor were Facebook friends.  After the employee filed a charge of discrimination with the EEOC, the supervisor unfriended the employee.  When the employee later added a claim for retaliation, one of the facts supporting the claim was the fact that the supervisor unfriended her.  As Ms. DiBianca wrote, "The employee felt the "unfriending" was the equivalent of what getting the “cold shoulder”—just in a virtual or electronic context.  Although the cold shoulder is not the traditional type of workplace retaliation, it can constitute an adverse employment action under the Burlington Northern standard—especially when it’s one of several “bad facts” tending to show that the employee was singled out after filing a complaint."

Practice pointers.  With the NLRB entering the social networking fracas, there is one more governmental agency for employers to be concerned with when dealing with social networking in the workplace.  When considering whether to implement or change a social networking policy, employers now need to consider the concept of "protected activity" as viewed by the NLRB. 

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The EEOC continues to file suits and reach settlements around the country on a regular basis.  Most recently, the EEOC announced a settlement with a Starbucks store in Arkansas as the result of disability discrimination.  According to KATV, Chuck Hannay was not hired because he has multiple sclerosis.  The EEOC said that Hannay applied for one of six barista positions, but he was never contacted and individuals with less experience and ability were hired instead.  The Starbucks store agreed to pay $80,000, and was enjoined from discriminating on the basis of disability and retaliation.  According to EEOC Regional Attorney Faye Williams, "People with disabilities should have equal opportunities for employment....This case demonstrates the EEOC's commitment to combat discrimination that prevents individuals with disabilities from taking their rightful place in the work force.

In Houston, the EEOC announced that two Sonic Drive-In franchises, with common ownership and management will pay $55,000 to settle a sexual harassment lawsuit filed by the EEOC.  According to the EEOC, the primary owner of the franchises "promoted a young, unqualified family member to consecutively higher management positions within the restaurants and allowed him to use his position of power to sexually harass the teens starting in 2006".  The EEOC also contended that this manager permitted and encouraged other male employees and managers to join in the harassing conduct.  When a 17year old female rejected the sexual advance of the manager, he became abusive to her and threatened her with a knife.  In addition to the monetary settlement, the defendants were required to develop and implement new policies and procedures for addressing illegal discrimination in the workplace, and they must be approved by the EEOC prior to implementation.  Jim Sacher, the EEOC's regional attorney, was quoted as saying:  "This lawsuit was filed in order to protect some of our nation's most vulnerable and impressionable workers-teenagers who. often are newcomers to the workplace...."

Practice pointers.  The EEOC continues to be extremely active in pursuing lawsuits and settlements  around the country.  Press releases usually accompany the filing of lawsuits and the settlement of cases, resulting in negative publicity for the companies named.  It is important to implement proper policies and procedures, and train the entire workforce on a regular basis.  This includes family members. 

As mentioned in a previous post, the EEOC is concentrating on harassment of young workers.  As we are still in the summer employment season, now is the prime time for teenagers who have summer jobs to be harassed, discriminated against and otherwise mistreated.  Again, training and monitoring the workforce is a must.

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I have written in the past about violence in the workplace and the problems associated with the presence of firearms in the workplace. Last week, in the case of M&J Materials v. Isbell, the Alabama Court of Civil Appeals found that summary judgment in favor of the employer was appropriate when a worker, who had suffered a compensable on the job injury, was discharged for pointing a gun at a manager.  Thanks to one of my associates from my Huntsville office, Michael Pillsbury, for the summary of the case:

Stanford D. Isbell (Employee) injured his right wrist on June 15, 2006 while working for M & J Materials, Inc. (Employer). Sometime between April 2006 and June 2006, Employee, while still employed by Employer, brought a firearm to Employer's place of business. While showing the firearm to his co-workers (but not management), Employee aimed the firearm at a member of the management team while the manager's back was to Employee. The firearm did not discharge but this conduct made several co-workers uncomfortable and was soon reported to management who terminated Employee. Upon his termination, Employee filed suit against Employer for retaliatory discharge. Employer's motion for judgment as a matter of law was twice denied and Employer appealed. In order to prove a prima facie case of retaliatory discharge, the employee must show: 1) an employment relationship, 2) an on-the-job injury, 3) knowledge on the part of the employer of the on-the-job injury, and 4) subsequent termination of employment based solely upon the injury and the filing of a worker's compensation claim. The Court focused on the fourth element as Employee had provided evidence that the first three elements had been satisfied. Failure by the Employee to prove any of the four elements listed above was grounds for judgment as a matter of law in favor of Employer.

Employer's stated basis for Employee's termination was that Employee had brought a firearm into Employer's place of business. The Court noted that an employer's stated basis for a discharge is sufficient to defeat the fourth element listed above when the facts surrounding the stated basis are undisputed and the employee has not provided substantial evidence that a) the stated reason for termination has been applied in a discriminatory manner to employees who have filed worker's compensation claims, b) company policy does not support the termination, or c) the employer disavowed the stated reason or has otherwise admitted it is pretextual. The Court held that there was no dispute that Employee brought a firearm to Employer's place of business and aimed it at his supervisor. The Court further held that the Employer's policy against possession of weapons in Employer's place of employment was not being applied in a discriminatory manner against employees who had filed a worker's compensation claim. This matter was remanded to the trial court for proceedings consistent with the determinations of the Court of Civil Appeals.

Practice pointer.  Any time a weapon, be it a gun, knife, baseball bat or other type of weapon, is brandished in the workplace, whether as a joke or as a threat, it must be taken seriously.  There is no room for error in dealing with potentially violent employees.  In the Isbell case, termination was the correct course of action to take to protect all of the employees.

UNPAID SUMMER INTERNS

There is a great deal of discussion in the legal community about the legalities of unpaid summer interns.  It appears as if there will be a crackdown on employers who improperly use unpaid interns to take the place or supplement regular employees.  I have heard on at least 4 occasions in the last 2 weeks about my own relatives and friends who are working in unpaid positions this summer in jobs for which they should be paid.  Sirote & Permutt's next seminar is scheduled for Wednesday, May 19th from 11:30 a.m. to 1:00 p.m.  It will be presented live in the Birmingham office, and will be shown via video conferencing my Huntsville and Mobile offices.  if you are interested in attending, please feel free to contact me so we can plan accordingly.

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Last January, I published an entry addressing the Crawford v. Metropolitan Govt of Nashville decision issued by the Supreme Court.  The Supreme Court held that an employee who responded to questions during an internal investigation is protected by the anti-retaliation provisions of Title VII.  The Supreme Court remanded the case to the District Court in Nashville, and a trial was held 2 weeks ago.  According to an article in the  Chicago Tribune on January 25, Crawford was fired in 2003 after more than 30 years with the school district as the result of her cooperation in the investigation.  "According to court documents, Crawford told investigators Hughes would ask to see her breasts, grab his crotch saying, "You know what's up", and on one occasion pulled her head to his crotch".  Frazier, the HR officer, promised Crawford that she would be protected from retaliation.  On the same day Frazier turned in her report on the allegations finding that no action would be taken against Hughes, Frazier sent a letter to the internal audit department informing them of concerns with the operation of Crawford's payroll department. Crawford has been unable to find another job since her termination in 2003, and she lost her house and car.  She also claimed that her professional reputation had been damaged, due in part to an article in the local newspaper that quoted Metro officials alleging that she might have embezzled money from the department, although there was never a finding of embezzlement.

Practice pointer.  Retaliation can be a very dangerous claim against employers, especially when the facts appear to be as bad as those set out in the Crawford case.  HR professionals must recognize the consequences of retaliating against any employee who is involved in a Title VII investigation, whether they are the accused, the accuser, or a witness.  Supervisory personnel must also be trained not to retaliate in these situations. 

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Tammy Edwards was awarded 5.79 million dollars by a jury in Federal Court in Montgomery for sexual harrassment, negligent supervision, and retaliation.  The Birmingham News reported late Friday, the jury  awarded $795,000 in compensatory damages, $5 million in punitive damages against Hyundai, and $10,000 against a supervisor, Mike Swindle, who was sued in his individual capacity.   The facts of the case involve Swindle propositioning Edwards for oral sex, sex, and threatened to blow her husband's head off.  Swindle also blocked her was in the hall, bumped against her with his hands behind his back, hugged her and pulled her hair by grabbing her pony tail.  Edwards complained to one supervisor, who took no action although he admitted he knew that Swindle's behavior was often objectionable.  She also complained to another supervisor, who laughed it off and said that Swindle will tell you "stuff you don't want to hear".  For a more detailed explanation of the causes of action and the facts of the case, you can read Judge Thompson's order denying Hyundai's Motion For Summary Judgment dated March 27, 2009. 

This is a textbook case on what can and often does go wrong in the work place.  Edwards missed her sexual harassment training because she was out sick  There was no signed receipt showing that Edward's received the 47 page, single spaced policy manual.  Swindle was transferred to another position, but his physical location was actually closer to Edwards then before he was transferred.  Swindle continues to work at Hyundai.

Practice Pointer.  It is essential that all complaints of harassing behavior be treated seriously, a proper investigation take place, and the appropriate remedial measures be implemented.  For an interesting perspective on how the general public views these type of cases, I would highly recommned that you read the Birmingham News article and the comments from the readers. 

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After a relatively quiet 2008 session on employment related issues, the United States Supreme Court issued it's second employment related decision in the past 2 weeks.  Today, in Crawford v. Metropolitan Govt of Nashville, the Supreme Court decided that an employee, who responded to questions during an internal investigation is protected under the anti-retaliation provisions of Title VII.  Crawford, a 30 year employee, was questioned by a Metro Government HR manager during an internal investigation concerning rumors of sexual harassment by Mr. Hughes, the school district's employee relations director.  She responded that Hughes had sexually harassed her.  Crawford was terminated shortly thereafter for embezzlement.  She filed her suit under Title VII, alleging that she was retaliated against for reporting Hughes' behavior during the investigation.  Hughes was not disciplined at all.  The court found that the anti-retaliation provision of Title VII extends protection to an employee who speaks out about discrimination not on her own initiative, but in response to questions asked during an internal investigation.  The Court found her response was covered under the "opposition" clause as a disapproving account of Hughes' sexually obnoxious behavior toward her. 

Practice Pointer.  During the course of an investigation, it is imperative that the employer learn of what happened as quickly as possible.  Witnesses, in answering questions during an investigation, are protected by the anti-retaliation provisions of Title VII.  Before any adverse action is taken against a witness in an investigation, it is important to confer with HR and/or legal counsel to make sure that the action is not retaliatory. 

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